232 F.3d 173 (3rd Cir. 2000), 98-5291, Doug Grant Inc. v. Greate Bay Casino Corp.

Docket Nº:98-5291
Citation:232 F.3d 173
Party Name:DOUG GRANT, INC., RICHARD ANDERSEN, JUDY L. BINTLIFF, LYNN V. BOHSEN, THOMAS M. BOLICK, MICHAEL BONN, ROLAND BRYANT, SR., EUGENE CLAUSER, ELMER CONOVER, SCOTT CONOVER, JOSEPH CURRAN, DINO D'ANDREA, MARK F. D'ANDREA, WARREN DAVENPORT, FRANK DELIA, KAREN DWYER, DENNIS F. FOREMAN, ROSEMARIE FRANCIS, STEPHEN FREEL, STAVROS GEORGIOU, KENNETH GROSS, ADIB
Case Date:November 02, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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232 F.3d 173 (3rd Cir. 2000)

DOUG GRANT, INC., RICHARD ANDERSEN, JUDY L. BINTLIFF, LYNN V. BOHSEN, THOMAS M. BOLICK, MICHAEL BONN, ROLAND BRYANT, SR., EUGENE CLAUSER, ELMER CONOVER, SCOTT CONOVER, JOSEPH CURRAN, DINO D'ANDREA, MARK F. D'ANDREA, WARREN DAVENPORT, FRANK DELIA, KAREN DWYER, DENNIS F. FOREMAN, ROSEMARIE FRANCIS, STEPHEN FREEL, STAVROS GEORGIOU, KENNETH GROSS, ADIB HANNAH, G. HASSAN HATTINA, LEROY N. JORDAN, ROMAN KERN, RICHARD H. KESSEL, SCOTT KLEE, JEFFREY S. KRAH, KATHLEEN E. LANE-BOURGEOIS, THOMAS J. LOTITO, JR., JAMES MACELROY, MAR TIN MALTER, STANLEY P. MCANALLY, ANNE T. MCGOWAN-NOVAK, EUGENE L. MISERENDINO, DANIEL G. NAUROTH, MATTHEW S. PELLENBERG, DANIEL PILONE, STEPHEN F. PINCIOTTI, ROBERT E. PROUT, MARTIN ROSE, LYNN RUFO, VINCENT SALEK, ARLEN SCHWERIN, JOSEPH SCIOSCIA, WILLIAM F. STRAUSS, DOUGLAS G. TELMAN, AINO TOMSON, ANTS TOMSON, THOMAS TOMSON, LINWOOD C. UPHOUSE, DOLORES VALANCY, ANDREW R. VARDZAL, JR., GRANT DOUGLAS VON REIMAN, KENNETH J. WARNER, STEVEN W ATTERS, PAUL V. YANNESSA, DOUG GRANT COLLEGE OF WINNING BLACKJACK, INC., SIGMA RESEARCH, INC., BETA MANAGEMENT, INC., FAVORABLE SITUATIONS ONLY INC., T/A DOUG GRANT INSTITUTE OF WINNING BLACKJACK, JAN C. MUSZYNSKI, LINDA TOMPSON, APPELLANTS

V.

GREATE BAY CASINO CORPORATION, GREA TE BAY HOTEL AND CASINO T/A SANDS HOTEL AND CASINO, SANDS HOTEL AND CASINO, HILTON HOTELS CORPORATION, GNOC CORP. T/A "ATLANTIC CITY HILTON," ATLANTIC CITY HILTON, BALLY'S PARK PLACE, INC. T/A "BALLY'S PARK PLACE," BALLY'S PARK PLACE, ITT CORPORATION, ITT CORPORATION NV, CAESAR'S WORLD, INC. A/K/A "CAESAR'S ATLANTIC CITY," CAESAR'S WORLD, CLARIDGE HOTEL & CASINO CORP., CLARIDGE AT PARK PLACE, INC., HARRAH'S ENTERTAINMENT, INC., MARINA ASSOCIATES D/B/A "HARRAH'S CASINO HOTEL", HARRAH'S CASINO HOTEL, SUN INTERNATIONAL NORTH AMERICA INC., SUN INTERNATIONAL HOTELS LTD., RESORTS INTERNATIONAL HOTEL, INC., RESORTS CASINO HOTEL, SHOWBOAT, INC., SHOWBOAT, AZTAR CORPORATION, ADAMAR OF NEW JERSEY, INC., (FORMERLY TROP WORLD CASINO AND ENTERTAINMENT RESORT) T/A TROPICANA CASINO AND RESORT, TROPICANA CASINO AND RESORT, TRUMP HOTELS & CASINO RESORTS, INC., TRUMP HOTELS & CASINO RESORTS HOLDINGS, L.P., TRUMP ATLANTIC CITY ASSOCIATES, TRUMP PLAZA ASSOCIATES, L.P., TRUMP PLAZA ASSOCIATES, TRUMP PLAZA HOTEL AND CASINO, TRUMP TAJ MAHAL ASSOCIATES, TRUMP TAJ MAHAL CASINO RESORT, THE TRUMP ORGANIZATION, INC., TRUMP'S CASTLE ASSOCIATES, L.P., TRUMP CASTLE ASSOCIATES, TRUMP MARINA CASINO HOTEL RESORT, FORMERLY TRUMP'S CASTLE CASINO RESORT, JOHN DOES 1-100, GRIFFIN INVESTIGATIONS, INTERNATIONAL CASINO SURVEILLANCE NETWORK, L.P., SURVEILLANCE INFORMATION NETWORK, JOHN DOES 101-200, F. MICHAEL DAILY, ESQ., QUINLAN, DUNNE, DAILY & HIGGINS, ELLEN BARNEY BALINT, MERANZE & KATZ, CAPLAN & LUBER, LLOYD S. MARKIND, ESQ., RICHARD L. CAPLAN, ESQ., SHARON MORGAN, ESQ., MICHELE DAVIS, ESQ.

No. 98-5291

United States Court of Appeals, Third Circuit

November 2, 2000

Argued October 5, 2000

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 97-04291) District Judge: Honorable Joseph E. Irenas

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Howard A. Altschuler (argued) 66 Saltonstall Parkway East Haven, CT 06512 Attorney for Appellants

Frederick H. Kraus Sands Hotel & Casino Indiana Avenue & Brighton Park Atlantic City, NJ 08401 Attorney for Appellees Greate Bay Casino, Greate Bay Hotel and Sands Hotel and Casino

Adam N. Saravay (argued) Tompkins, McGuire, Wachenfeld & Barry, Llp 4 Gateway Center Newark, NJ 07102 Attorneys for the Trump Casino Appellees and Co-Counsel for the Remaining Casino Appellees and Griffin Investigations

John M. Donnelly (argued) Levine, Staller, Sklar, Chan, Brodsky, & Donnelly, P.A. 3030 Atlantic Ave. Atlantic City, NJ 08401 Attorneys for Casino Appellees (other than the Trump Casino Defendants) and Griffin Investigations

Before: Nygaard, Greenberg and Cowen, Circuit Judges

OPINION OF THE COURT

Greenberg, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on appeal from an order entered on May 1, 1998, partially dismissing this action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted.1 See Doug Grant, Inc. v. Greate Bay Casino Corp., 3 F. Supp.2d 518 (D.N.J. 1998). The appellants had instituted this action in the Superior Court of New Jersey but the appellees removed it to the district court. Consequently, when the district court entered the Rule 12(b)(6) order it remanded appellants' state-law claims that it did not address to the Superior Court. In view of the procedural posture of this case, we treat the allegations of fact in the complaint as true, and consider them in a light most favorable to the appellants.2

The individual appellants are blackjack players who have frequented Atlantic City casinos operated by the casino appellees. Of the 60 individual appellants, all but six have developed card-counting skills for playing blackjack enabling them to reduce or eliminate the normal odds in favor of the casinos and, indeed, to turn the odds in their favor. The corporate appellants are associated with appellant Doug Grant, Inc., a New Jersey corporation, whose predecessor corporations operated card-counting schools and mock casinos established by the appellant, Doug Grant, a renowned card-counter . Doug Grant, Inc. also provided the training for several cooperative player groups, including many of the appellants here, who pooled their financial resources and agreed to share their blackjack winnings.

A. The Play of Blackjack, Card-Counting and Shuffling- At-Will and Other Countermeasures

The gravamen of appellants' complaint is that the casinos have taken countermeasures that the appellants regard as illegal to eliminate the advantage that a

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skilled card-counter may have over them in playing blackjack, the one casino game in which a player's skill may increase his chance of winning to the point of eliminating the winning odds in favor of the "house." See Campione v. Adamar of N. J., Inc., 714 A.2d 299, 301 (N.J. 1998). Card-counters use intellect and memory to identify the time during the course of play when a player's odds of winning are better or worse. Thus, the individual appellants allege that the casinos have impaired their ability to win money from the casinos in blackjack. The corporate appellants allege that their schools and mock casinos were forced to close as a result of the casinos' countermeasures against card-counters, and because of bomb threats, break-ins, destruction of property, theft of student lists, stalking and other intimidation tactics.

It is necessary for us partially to describe how blackjack games are run in order to put appellants' allegations in context. Blackjack is played with decks containing 52 cards of four suits (hearts, diamonds, clubs and spades) with each suit containing 13 cards (Ace, King, Queen, Jack, 10, 9, 8, 7, 6, 5, 4, 3, 2). See N.J.A.C. S 19:46-1.17. Before a blackjack game starts, the dealer receives one or more, usually between six to eight, card decks from a casino supervisor and inspects them in the presence of the floorperson. See id. S 19:47-2.4(a). After inspecting the cards, the dealer takes them to a blackjack table and spreads them out in a fan, face upward, for visual inspection by the first player or players to arrive at the table. See id. S 19:47-2.4(b). After these players are afforded an opportunity to inspect the cards, the dealer turns them face downward on the table, mixes them thoroughly, and shuffles them until they are "randomly intermixed." The dealer then places the cards into a stack. See id. S 19:47-2.4(c); id. S 19:47-2.5(a). After the shuffling is completed, the dealer asks the player seated at a particular position at the table, as defined by the regulations of the Casino Control Commission ("CCC"), the casino regulatory agency, id. 19:47-2.5(e), to cut the deck. See id. S 19:47-2.5(b). The player cuts the deck by placing a plastic cutting card in the stack at least ten cards from either end. See id. S 19:47-2.5(c).

Once the player has inserted the cutting card, the dealer takes all the cards in front of the cutting card and places them at the back of the stack. See id. S 19:47-2.5(d). The dealer then takes the entire stack of shuffled cards and cuts and aligns it along the side of the dealing shoe which has a mark on its side enabling the dealer to insert the cutting card so that it is in a position "at least approximately" one-quarter of the way from the back of the stack. See id. S 19:47-2.5(d); id. S 19:46-1.19(d)(4). The dealer then inserts the stack of cards into the dealing shoe for commencement of play. See id. S 19:47-2.5(d). The cards behind the cutting card will not be used during the game.

Once play has commenced the dealer deals the cards to the players in a series of hands until the dealer reaches the cutting card. When the dealer reaches the cutting card, the dealer repeats the shuffling process and cutting procedures described above. See id. S 19:47-2.5(h).

A blackjack player's object is to reach as close as possible to a total card value of 21 without exceeding that value. A player exceeding 21 loses regardless of the dealer's subsequently acquired hand. Persons in the casino industry and card-counters have come to recognize that, in a player's endeavor to reach a value as close as possible to 21, certain cards are more favorable to the player and certain cards are more favorable to the dealer. In particular, appellants assert that the Ace, King, Queen, Jack and Ten are favorable to a player, but the 6, 5, 4, 3, and 2 are favorable to the dealer and thus to the house. The 7, 8...

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